February 16, 2018

Lawsuit: AG violated open records law

An Alamogordo resident filed an open records lawsuit against the New Mexico Office of the Attorney General Friday, alleging the office illegally redacted portions of legal invoices related to a U.S. Supreme Court case.

Open records activist Wendy Irby filed the suit after she received significantly-redacted billing records for a contract between the Attorney General’s office and an Albuquerque law firm well-known in the state legal world for government contracts. According to court records, Irby asked the AG’s office for billing information from Robles, Rael and Anaya P.C. related to Texas v. New Mexico and Colorado, a case about the states’ water use and sharing. The private law firm argued the case on behalf of the AG’s office. Irby’s lawsuit says Attorney General Hector Balderas and his records custodian violated the New Mexico Inspection of Public Records Act (IPRA) by blacking out billing specifics from Robles Rael & Anaya.

In 2016, a state district judge ruled in favor of Irby in a lawsuit against the City of Alamogordo. In that case, Irby asked to inspect the former mayor’s Facebook page and was denied access. The judge eventually ruled the mayor’s Facebook page was considered public record.

New Mexico Foundation for Open Government Executive Director Peter. St. Cyr told NM Political Report there seems to already be state case law that says billing records and invoices for public bodies are open to the public.

“We think this question has been asked and answered,” St. Cyr said, referring to the 1997 New Mexico Supreme Court case Schein v. Northern Rio Arriba Electric Cooperative, Inc, in which the state high court ruled that the cooperative should have provided access to legal billing records to a journalist.

Journalist Jeff Proctor is currently suing the state’s General Services Department for a similar reason. In Proctor’s case, the General Services Department denied billing records for Gov. Susana Martinez’s contract attorney and former New Mexico Supreme Court Justice Paul Kennedy.

Dunn is no stranger to IPRA lawsuits or lawsuits involving Balderas. In January, Dunn’s client, Los Alamos County Sheriff Marco Lucero, sued Balderas for violating IPRA. Last year, Dunn himself filed a suit against the New Mexico Supreme Court and Albuquerque’s district and metropolitan courts over bail reform rules that followed a voter approved constitutional amendment. Balderas represented the state in that case. A federal judge ruled in favor of the New Mexico courts, deemed the lawsuit “frivolous” and ordered Dunn to personally pay “reasonable costs and attorneys fees.”

Dunn, a Libertarian, and Balderas, a Democrat, will likely end up in a three-way race for Attorney General against a Republican candidate in November.

James Hallinan, a spokesman for Balderas, said the lawsuit is Dunn’s attempt to bolster his campaign.

“What’s most transparent is that Blair Dunn is more concerned with doing whatever he can to fabricate a resume to support his run for attorney general than he is concerned about wasting taxpayer money with yet another frivolous lawsuit,” Hallinan wrote in a statement to NM Political Report. “The Office of the Attorney General looks forward to the swift dismissal of another in a string of frivolous lawsuits that have resulted in nothing more than wasted time and $11,000 in court imposed sanctions against. Mr. Dunn.”

For his part, Dunn said the lawsuit is an attempt to hold Balderas to public expectation. The Attorney General’s office is the authority in the state tasked with enforcing IPRA.

“The bigger and more disturbing thing is that the Attorney General’s office believes that the citizens of New Mexico’s concerns over understanding what their government is up to, through transparency, are frivolous,” Dunn said.

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All week, we look for stories that help New Mexicans better understand what’s happening with water, climate, energy, landscapes and communities around the region. Thursday morning, that news goes out via email.

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The University of New Mexico is reevaluating its policy of charging for electronic copies of public records on a per-page basis in response to a reprimand from the New Mexico Attorney General’s Office. In an email to NM Political Report, the school’s Office of University Counsel said the UNM public records custodian is “evaluating the fee structure” for fulfilling requests of electronic records.

A lawsuit filed Thursday afternoon in Santa Fe District Court aims to uncover how much New Mexico taxpayers shelled out for a private attorney to represent Gov. Susana Martinez’s office in a number of court cases. Journalist Jeff Proctor* filed the lawsuit against the state’s General Services Department (GSD) for not releasing attorney Paul Kennedy’s invoices for his public work, claiming the department failed to comply with the state’s Inspection of Public Records Act (IPRA).

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